M.S. Schweers v. PPB ( 2022 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael S. Schweers, :
Petitioner :
:
v. : No. 705 C.D. 2021
: Submitted: May 27, 2022
Pennsylvania Parole Board, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY SENIOR JUDGE LEAVITT FILED: July 29, 2022
Michael S. Schweers (Schweers) petitions for review of an adjudication
of the Pennsylvania Parole Board (Parole Board) dismissing his administrative
appeal of two Parole Board decisions as untimely. The first decision recommitted
Schweers as a convicted parole violator and recalculated his maximum sentence
date. The second decision modified the Parole Board’s first decision by revising the
maximum sentence date in favor of Schweers. On appeal, Schweers argues that the
Parole Board violated his due process rights (i) by issuing the first decision before
his 10-day period for withdrawing his hearing waiver had expired and (ii) by not
attaching an administrative appeal form to the second decision. Schweers’ appointed
counsel, James J. Karl, Esquire (Counsel), of the Dauphin County Office of the
Public Defender, has filed an Application for Leave to Withdraw as Counsel and an
Anders brief1 asserting that Schweers’ appeal lacks merit. For the following reasons,
we grant Counsel’s application and affirm the Parole Board’s decision.
In 2008, Schweers was convicted of two counts of the manufacture,
delivery, or possession with intent to manufacture or deliver a controlled substance.
He was sentenced to a term of incarceration of 4 to 10 years. On March 26, 2012,
Schweers was paroled from the State Correctional Institution (SCI) at Retreat to
Keystone Correctional Services, Inc. in Harrisburg, Pennsylvania. At the time of his
parole, Schweers’ maximum sentence date was March 20, 2018. Certified Record
at 7 (C.R. __).
Schweers completed the program at Keystone Correctional Services,
Inc. and, on April 26, 2012, was released to an approved home plan. Subsequently,
on August 5, 2012, the Parole Board received notification that new criminal charges
had been filed against Schweers and that Schweers had used alcohol in violation of
his parole conditions. As a result, Schweers was detained, and on October 1, 2012,
the Parole Board recommitted Schweers as a technical parole violator. His
maximum sentence date remained March 20, 2018.
Subsequently, Schweers was reparoled to the Joseph E. Coleman
Center in Philadelphia, Pennsylvania. After completing the program, he was
released to an approved home plan. Thereafter, Schweers absconded from parole
supervision and was declared delinquent effective February 28, 2014. On April 12,
1
Anders v. California, 386 U.S. 738, 744 (1967) (“a brief referring to anything in the record that
might arguably support the appeal” is to be filed with the Court “if counsel finds his [client’s] case
to be wholly frivolous, after a conscientious examination of it”). “Where counsel files an Anders
brief when a no-merit letter would have sufficed, this Court will accept an Anders brief in lieu of
a no-merit letter if the Anders brief complies with the substantive requirements of a no-merit
letter.” McCullough v. Pennsylvania Board of Probation and Parole, 256 A.3d 466, 468 n.2 (Pa.
Cmwlth. 2021).
2
2014, the Wrightsville Borough Police Department arrested Schweers following a
traffic stop. The Parole Board allowed Schweers to remain on parole.
On September 16, 2014, Schweers failed to report to the parole office
as instructed and attempts to locate Schweers were unsuccessful. On September 23,
2014, the Parole Board declared Schweers delinquent as of September 16, 2014.
On September 24, 2014, parole agents located and arrested Schweers,
and on that same day, the Wrightsville Borough Police Department filed new
criminal charges against him. C.R. 26. On November 7, 2014, the Parole Board
issued a detainer to keep Schweers incarcerated pending disposition of the new
criminal charges and recommitted him as a technical parole violator to serve six
months for multiple violations of his parole conditions. His maximum sentence date
was set at March 28, 2018.2 Id. at 35. On December 18, 2015, the pending criminal
charges were nolle prossed.
On December 28, 2015, Schweers was reparoled to Wernersville
Community Corrections Center. After completion of that program, he was released
to an approved home plan. Subsequently, Schweers absconded, and on April 11,
2017, the Parole Board declared Schweers delinquent effective April 7, 2017. Id. at
40.
Then, on August 22, 2017, the Pennsylvania Office of Attorney General
arrested Schweers for possession with intent to deliver – cocaine; criminal
conspiracy – possession with intent to deliver; and use or possession of drug
paraphernalia. Id. at 42. On October 8, 2017, the Parole Board detained Schweers
pending disposition of the new criminal charges.
2
His maximum date of sentence was extended for the eight days he was delinquent while on
parole.
3
Because criminal charges were still pending at the time Schweers’
maximum date of sentence expired, i.e., March 28, 2018, the Parole Board issued a
decision declaring Schweers delinquent for control purposes as of August 22, 2017.
C.R. 77. On July 19, 2018, Schweers pled guilty to the manufacture, delivery, or
possession with intent to manufacture or deliver a controlled substance. He was
sentenced to 5 to 10 years’ incarceration, the start of which was deferred until
September 21, 2018, at 8:00 p.m. When Schweers did not report to prison, a warrant
for his arrest was issued.
On October 31, 2018, Schweers was arrested and detained at Lancaster
County Prison. He was then transferred to SCI-Camp Hill. On December 3, 2018,
the Parole Board gave Schweers a Notice of Charges and Hearing, advising him that
a revocation hearing had been scheduled as a result of his new criminal conviction.
C.R. 79-80. Schweers waived his right to a hearing and counsel and admitted to the
new conviction. Id. at 81.
By decision recorded December 11, 2018, the Parole Board
recommitted Schweers as a convicted parole violator. It denied him credit for the
time spent at liberty on parole and calculated his maximum sentence date as June 1,
2020. Thereafter, the Parole Board determined that it had erred in its calculation of
Schweers’ maximum sentence date.3 On December 13, 2018, the Parole Board
issued a modified decision, changing Schweers’ maximum sentence date from June
1, 2020, to April 25, 2020. C.R. 145.
3
The Parole Board used December 7, 2018, as the date of Schweers’ return to custody, but it
should have been October 31, 2018.
4
Almost two years later, on February 25, 2020, Schweers filed a request
for administrative review alleging that his due process rights had been violated.4 On
May 5, 2021, the Parole Board denied his request as untimely. Schweers sought
relief from the decisions of December 11 and 13, 2018, but those requests had to be
received at the Parole Board’s central office within 30 days of the mailing date of
the Board’s decision. 37 Pa. Code §73.1.5 Schweers did not meet the 30-day
deadline.
On June 4, 2021, Schweers, pro se, filed a petition for review with this
Court, arguing that the Parole Board’s decisions violated both procedural and
substantive due process. Petition for Review ¶3. Schweers explains that he filed an
administrative appeal challenging the lack of due process on February 19, 2020, but
it was dismissed as untimely. Id. ¶¶5-6. Counsel has filed an application for leave
to withdraw as counsel along with an Anders brief in lieu of a no-merit letter,
asserting that Schweers’ claims lack merit.
In Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), our Supreme
Court set forth the technical requirements appointed counsel must meet in order to
withdraw from representation. Pursuant to Turner, once appointed counsel has
reviewed the case and determined that the petitioner’s claims are meritless, he or she
must
4
In his administrative appeal, Schweers alleged that he was coerced into signing the waiver of the
revocation hearing based upon statements from his parole agent. C.R. 151. Further, he understood
that he had 10 days to withdraw the waiver, but the Parole Board’s recommitment decision was
issued during that 10-day period so he could no longer withdraw his waiver.
Additionally, Schweers states that he had been transferred to a county prison, and upon his
return to SCI-Camp Hill, he received the Parole Board’s decision recalculating his maximum
sentence date. That decision did not include an administrative remedies form. Schweers alleged
that when he inquired to his parole agent about an appeal and the timeliness of that appeal, the
parole agent told him that he had 30 days to appeal, which had already expired.
5
The relevant text of this regulation is provided infra.
5
[t]hen submit a “no-merit” letter to the trial court, or brief on
appeal to this Court, detailing the nature and extent of counsel’s
diligent review of the case, listing the issues which the petitioner
wants to have reviewed, explaining why and how those issues
lack merit, and requesting permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of the “no-
merit” letter/brief; (2) a copy of counsel’s petition to withdraw;
and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.
Zerby v. Shanon, 964 A.2d 956, 960 (Pa. Cmwlth. 2009). If the requirements of
Turner are met, this Court must then consider the merits of the petitioner’s claims.
Id.In the instant case, Counsel has filed an Anders brief in lieu of a no-
merit letter detailing his review of Schweers’ criminal record and parole history as
well as explaining the basis for his legal conclusion that the issues raised in
Schweers’ appeal lack merit. The record establishes that Counsel sent a copy of the
Anders brief to Schweers; a copy of his petition to withdraw; and a letter advising
Schweers of his right to obtain new counsel or proceed pro se. Because Counsel has
complied with the requirements of Turner, we now consider the merits of Schweers’
petition for review.
On appeal,6 Schweers argues that the Parole Board violated his due
process rights because it did not give him sufficient time to consider whether he
wanted to withdraw his waiver of a revocation hearing before it issued the
recommitment decision, and it did not include an “administrative appeal form” with
the December 13, 2018, recalculation decision. Petition for Review ¶5 (quoting
6
Our review of the Parole Board’s decision determines whether constitutional rights were violated,
whether the decision was in accordance with the law, or whether the necessary findings of fact
were supported by substantial evidence. Kerak v. Pennsylvania Board of Probation and Parole,
153 A.3d 1134, 1137 n.9 (Pa. Cmwlth. 2016).
6
Exhibit A at 2, ¶11). Schweers, however, does not address the timeliness of his
administrative request for relief in the appeal.
By way of background, a parolee must appeal a revocation decision
within 30 days of the Parole Board’s decision, or it will be dismissed as untimely.
61 Pa. C.S. §6113(d)(1) (stating that an appeal of a revocation decision must be filed
within 30 days of the Board’s order). The Parole Board’s regulation on appeals
states as follows:
An interested party, by counsel unless unrepresented, may appeal
a revocation decision. Appeals shall be received at the Board’s
Central Office within 30 days of the mailing date of the Board’s
order. When a timely appeal of a revocation decision has been
filed, the revocation decision will not be deemed final for
purpose of appeal to a court until the Board has mailed its
decision on the appeal. This subsection supersedes 1 Pa. Code
§35.226 (relating to final orders).
37 Pa. Code §73.1(a)(1).
Schweers acknowledges that he received the Parole Board’s December
11, 2018, revocation decision on December 12, 2018. C.R. 152, ¶8. However, he
did not file an appeal until February 25, 2020. We hold that Schweers’
administrative appeal of the December 11, 2018, decision was untimely filed.7
7
Even if Schweers had timely appealed the December 11, 2018, decision, his due process issue
lacks merit. “In order to effectuate a knowing and voluntary waiver in Parole Board cases, all that
is required is for the Board to show that it followed its own regulations and provided the necessary
information to the offender prior to the offender signing the written waiver form.” Prebella v.
Pennsylvania Board of Probation and Parole, 942 A.2d 257, 261 (Pa. Cmwlth. 2008). Execution
of the Parole Board’s form is sufficient, which we have here. Id.; see also C.R. 79-81. Although
Schweers subsequently claimed that Parole Board staff induced him to waive the revocation
hearing by telling him that a hearing would be a waste of time and would likely anger the Parole
Board, his statements are contrary to his statements of record, wherein Schweers stated that he
waived his right to a hearing of his “own free will, without promise, threat or coercion.” Id. at 81.
Additionally, Schweers never sought to withdraw his waiver. In sum, Schweers relinquished his
7
Regarding the Parole Board’s December 13, 2018, recalculation
decision, Schweers contends that he did not receive that decision until March of
2019. C.R. 152, ¶11. When he was given that decision, he was not provided with
an administrative remedies form on which to file his appeal.
Accepting Schweers’ statements as true,8 Schweers received the Parole
Board’s December 13, 2018, decision in March of 2019; however, he did not file a
request for administrative review within 30 days. C.R. 151-53. Instead, he waited
almost a year before filing his administrative appeal. Accordingly, his
administrative appeal was untimely filed.
Even so, neither the Prisons and Parole Code nor the Parole Board’s
regulations require the Parole Board to provide an administrative remedies form to
an offender. See generally 61 Pa. C.S. §§6113(d), 6138; 37 Pa. Code §§71.4-71.5,
73.1. Where an administrative agency has provided a duly publicized procedure for
a hearing or an appeal, it is not also required to extend additional notice of those
rights. See Johnson v. Pennsylvania Board of Probation and Parole, 524 A.2d 528,
529 (Pa. Cmwlth. 1987).
Lastly, Schweers cannot use a request for administrative review of a
recalculation order, i.e., the Parole Board’s December 13, 2018, decision, to
challenge the Parole Board’s recommitment order, i.e., the Parole Board’s December
right to a revocation hearing and only after the opportunity passed did he seek more time to
consider the waiver.
8
Significantly, Schweers did not seek to file his administrative appeal nunc pro tunc. Even if he
did, the “petitioner in an appeal nunc pro tunc must proceed with reasonable diligence once he
knows of the necessity to take action.” Kaminski v. Montgomery County Board of Assessment
Appeals, 657 A.2d 1028, 1031 (Pa. Cmwlth. 1995). “A party seeking permission to file a nunc
pro tunc appeal . . . needs to establish that: (1) [he] filed the appeal shortly after learning of and
having an opportunity to address the untimeliness; (2) the elapsed time is one of very short
duration; and (3) the respondent will not suffer prejudice due to the delay.” J.A. v. Department of
Public Welfare, 873 A.2d 782, 785 n.4 (Pa. Cmwlth. 2005). Here, Schweers waited nearly a year
after receiving the Parole Board’s recalculation order before filing an administrative appeal.
8
11, 2018, decision. “[A]n administrative agency, on its own motion, having
provided the proper notice and explanation, may correct typographical, clerical, and
mechanical errors obviated and supported by the record.” Kentucky Fried Chicken
of Altoona, Inc. v. Unemployment Compensation Board of Review, 309 A.2d 165,
167 (Pa. Cmwlth. 1973). Schweers does not argue that the Parole Board failed to
provide an adequate explanation of the recalculation of his maximum sentence date.
Nor does Schweers challenge the calculation of his maximum sentence date
following his recommitment as a convicted parole violator. Thus, we are satisfied
that Schweers could not have prevailed even if his appeal of the December 13, 2018,
decision had been timely filed.9
For these reasons, we conclude that Counsel has fulfilled the
requirements of Turner and our independent review of the record confirms that
Schweers’ appeal lacks merit. Accordingly, we grant Counsel’s application for
leave to withdraw as counsel and affirm the Parole Board’s adjudication.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
9
See Woodard v. Pennsylvania Board of Probation and Parole, 582 A.2d 1144, 1145-47 (Pa.
Cmwlth. 1990) (wherein this Court held that the parolee had waived the issues relating to the
recommitment order and could not properly raise the same issues in a timely appeal of the Parole
Board’s recalculation order).
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michael S. Schweers, :
Petitioner :
:
v. : No. 705 C.D. 2021
:
Pennsylvania Parole Board, :
Respondent :
ORDER
AND NOW, this 29th day of July, 2022, the Application for Leave to
Withdraw as Counsel filed by James J. Karl, Esquire, is GRANTED, and the May
5, 2021, adjudication of the Pennsylvania Parole Board is AFFIRMED.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita